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Left high and dry in the Klamath Basin?

By Guest Columnist James Huffman, Oregonian October 29, 2009

huffman.jpgJames Huffman is the Erskine Wood Sr. Professor of Law at Lewis & Clark Law School.
The Klamath Basin Restoration Agreement has been much celebrated as the solution to decades of conflict over Klamath Basin water. Surely no one can object when competing interests, stakeholders we now call them, reach agreement.

Well, at least a few people do object, and for good reason. Roger Nicholson and his neighbors have vested water rights the agreement will likely obliterate, yet they were excluded from the negotiations. Even if he had been allowed to participate, Nicholson would have been a mere stakeholder with rights no better than the guy from Portland who just doesn't like alfalfa where native grasses once grew.

Nicholson's family settled in the Klamath Basin in 1891 and acquired water rights under Oregon law. If water rights were cards in a deck, he'd be holding kings, if not aces. Under Oregon law, when water is short, senior rights owners have priority over juniors.

But notwithstanding his high cards, Nicholson is at risk of losing everything. He estimates that he and his neighbors have wagered more than a million dollars on litigation, yet now they could be put out of business. Without water, they are doomed. In poker parlance, they are "all in." They had no other choice.

In 1975, Oregon commenced a still-pending adjudication of Klamath water rights. Nicholson's 1891 rights were secure, having been confirmed in two prior adjudications. The only wild cards were tribal and federal rights.

A 1979 federal court decision found that tribal rights dated from "time immemorial" and included water for irrigation, hunting and fishing. Although the court did not quantify the tribal rights, it provided state adjudicators with a good basis for doing so. But in 2002, another court held that the tribal rights include water to sustain "productive habitat." The decision was vacated by the 9th Circuit, but the "productive habitat" language survived to bolster federal demands that senior rights holders, like Nicholson, forgo water use, without compensation, to protect endangered species.

In the meantime, Nicholson's group negotiated a settlement with the Klamath Tribes, but the Department of Interior rejected the agreement as contrary to the tribes' interests. The reality is that the department saw an opportunity to piggyback its habitat preservation ambitions on the newly found tribal right to "productive habitat."

So nearly 30 years into the water rights adjudication, Nicholson's rights remained in limbo. In 2001, the federal government ignored senior water rights in curtailing irrigation releases from Upper Klamath Lake to protect endangered fish. Although Nicholson and other "off project" irrigators were not affected, the writing was on the wall for all senior rights owners.

When it seemed it could not get worse for Nicholson, it has. The Klamath agreement will leave him with no water if government bureaucrats conclude that "productive habitat" requires all upper basin water. Nicholson can still assert his twice-affirmed rights in the state adjudication, and argue that tribal rights are not what the vacated court opinion held them to be, but he will almost certainly lose. The state agency responsible for the preliminary adjudication has signed the Klamath agreement, which stipulates that its terms be reflected in the adjudication.

After 30 years of litigation, Roger Nicholson's water rights may be little more than a mirage. But unlike a few of his neighbors, who have sold out to the government, Nicholson is not giving up the fight. He knows there is little chance of persuading federal and state officials bent on species protection without regard for property rights. But he still hopes a court somewhere will take his 118-year-old rights seriously.

James Huffman is the Erskine Wood Sr. Professor of Law at Lewis & Clark Law School.
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